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Who Will Deliver America’s Babies?

The results are in: not only are high professional liability premiums impacting ob-gyn practices around the country, but the fear of lawsuits is limiting women’s access to health care. Data from the 2015 ACOG Survey on Professional Liability confirms an enduring negative liability environment, with nearly 50% of ob-gyns surveyed making changes to their practice as a result of the risk or fear of professional liability claims or litigation. Notably, nearly 40% of ob-gyns have made changes to their practice because of the unavailability or unaffordability of professional liability insurance. Unfortunately, these practice changes are having a negative impact on the women we treat. Results of the survey showed that too often, ob-gyns have been forced to decrease the number of high-risk obstetric patients they see and/or limited the gynecological surgical procedures they offer. This leads me to the question: If this doesn’t change, who will deliver America’s babies? Who will care for America’s women?

Of course, ACOG Members are dedicated to caring for women; healthy mothers and healthy babies are the goal of every ob-gyn, and that is why we went into this specialty in the first place. ACOG is committed to reviewing the available medical literature and issuing evidence-based practice recommendations for our Fellows and other health care providers. But if liability issues are keeping ob-gyns from being able to follow those recommendations, we are facing a big problem. Quality collaboratives are an important way to help make sure that those recommendations – including those related to early elective deliveries and avoiding the primary cesarean – are implemented in a way that truly improves the care that women receive, but we need a safe practice environment that allows those collaboratives to work.

A platform that supports these initiatives is the bipartisan Quality Care for Moms and Babies Act of 2015, which passed the Senate Finance Committee on July 30th. We will continue working hard in the hopes of making this important liability reform bill succeed.

About Mark DeFrancesco

Mark S. DeFrancesco, MD is the president of ACOG through April 2016. He is managing partner at Westwood Women’s Health in Waterbury, Connecticut, a division of Women’s Health Connecticut. Dr. DeFrancesco is a founding member of Women’s Health Connecticut, and served as its chief medical officer for many years. A graduate of Yale University, he received his medical education at the University of Connecticut, where he is currently an assistant clinical professor. Dr. DeFrancesco also earned an MBA from the University of New Haven.

12 thoughts on “Who Will Deliver America’s Babies?”

An additional, odd burden that has caused many to withdraw from obstetrics locally, rurally, is the amount of hospital burden created by the reduction in public health unit and hospital access, coupled with expansion of Medicaid, and overuse of EMTALA.

The ER has now become a walk in clinic, and in smaller cities/towns this constant 24 hr burden of coverage falls on just a few physicians. The hospital can’t afford Ob hospitalists, and with the JACHO, and other regulatory requirements that require massive paperwork and limits on preprinted orders, skilled RN nursing judgements, etc, the result is a life limiting burden of hospital duties, basically for free, that interrupts physician life and offices where people who work and pay the taxes, wait or get rescheduled while the physician tends to the unassigned hospital patients.

Why so many unassigned? The ability to walk in for free at any time to a hospital frees these folks from the burden of having to get dressed and go to an appointment. Many have been ousted from private offices for non compliance. Many are just visiting in the area, have no significant problem but just pop in at night to “check baby” hoping for an ultrasound. Many plan to deliver in nearby big city hospitals where the rooms are bigger and you get a steak dinner, but don’t want to inconvenience themselves by traveling that far at night for what, ironically, is a minor problem in their mind. The visit is free so, why not pop in?

Your concern regarding litigation is spot on, and if you visit smaller southern towns, particularly those with high Medicaid usage, you will appreciate another threat to ABOG MD access for society.

This underscores the need for team based care. There are not enough physicians in the right place at all times, and the model of practice has to be changed to accommodate the new environment. Systems may need to adapt to encourage patient behavior to change if there is any hope of making the system more efficient. Is there some way to incentivize people to be more proactive in their approach to healthcare so they realize the benefits of compliance? A very difficult situation that needs some thoughtful attention. ~Dr. Mark DeFrancesco

It takes a physicians testimony as an expert to bring lawsuit forward. It is not a lawyer problem, it is an “expert witness” problem. ACOG needs to partner with ABOG and sanction members to the point of suspending their board approval (which has been upheld by the courts in the case of the neurosurgery board) for giving testimony not clearly in line with evidence based medicine. Also, ACOG and ABOG need to set up an expert witness certification. These two things will make it all go away. This is the root cause, not lawyers or the legal system. TRIUTH.

Reply to Tim Durkee–
ACOG has an Expert Witness Affirmation develop in 2002 during time Charles Hammond MD FACOG was President of ACOG.

Any member of ACOG can file a complaint to the Grievance Committee against a Physician for Unethical Testimony. It’s not a simple passive activity for the Member that files complaint must appear at committee meeting. The ACOG Grievance has the power to sanction the member which affects the Physician’s Credibility in the Courtroom.
This is active and several members have been sanctioned and name reported to all ACOG Members

Thank you for your valuable advise. I really believe that it should be a system in place to penalize unethical and unfair acts that can potentially threaten a good physician ‘s credibility and reputation which could potentially turn to unfair judgement in court. I truly believe that there should be a credential process in place to validate and assess that expert witness who appear in the court and testifies is practicing evidence based practice and is up to date with most recent new research.
This should also applies to decisions being made even in peer review committee of the hospitals. I have seen cases that being unfairly judged by peers in peer review committees especially by older colleagues who had been grand father in and not even meet the recent ABOG qualification requirements.
I want to know if there is any grievience system in place to report these unfair and incorrect peer review judgements to ACOG as well and if not what other avenues should be taken or available in these case scenarios .

Maryam–
Yes ACOG has a grievance system already in place. Please read my reply to Tim Durkey above.
The credentials to validate a Expert Witness in court is set by each individual State Laws for Experts in Civil lawsuit cases and vary from state to state — but in general the Doctor must practice in same Speciality that of defendant Doctor, be in active practice at time of event, & Board Certified ( but not all States )

Peer review proceedings are confidential & protected from discovery by law.
I don’t know how you obtain information about proceeding in peer review unless you are on those committees.
If the proceeding were discussed outside of committee then that member has lost his or her indemnification protection & open for discovery.

The older colleagues are only grandfather on recertification by ACOG for ABOG they still must qualify to renew their State License each cycle with CME etc. Most hospital also require renewal Staff privileges every two years but can vary time intervals

You should meet with your hospital Executive Committee if you feel there are unfair, incorrect, or misjudged decisions made in your local hospital peer review.
If unfair decision was made against you then you have avenues through your State medical society, state medical boards, or through the courts with legal attorney representation.
Contact ACOG if questions for they are there to help with your needs, but understand they simple are not able to give us legal advice.
Hopes this helps answer your questions & concerns

ACOG currently does have an expert witness affidavit that we all should remind defense attorneys to investigate when vetting plaintiff experts. I will pass along your suggestion in case it is feasible to consider it. Thanks very much. ~Dr. Mark DeFrancesco

We, members of ACOG ,are not trained to practice cowardice but to protect women and their childbirth experience. We can not practice on the basis of median or medium of the practice with which ACOG guidelines are formulated. Many times we have to jump out of very safe guideline taking the risk of malpractice from unappreciating patients. If indeed the fear of malpractice hampers us from genuine humanistic practice, we, as a group have to butt our head against those, Democratic Party caucus in Congress who stand with lawyers who stand to gain maximum financial benefit. Selfish idiots. Our representatives in ACOG, time to stand up. PS. I am a member of life time.

Thanks for your comments. I agree our standards should be of the highest level and as much as possible, be based on the best evidence available. I know the ACOG Committees that produce our guidelines are motivated by the imperative to do the right thing for our patients. For a long time we have lobbied in Congress, as well as in many state legislatures for “safe harbor” provisions that would indemnify physicians who follow appropriate guidelines. As you know, it is a tough, uphill battle. ~Dr. Mark DeFrancesco

CMS recently announced that 65% of all deliveries in the United States are now paid for with Medicaid dollars. This essentially means that 65% of our business (Obstetrics) is paid for with welfare dollars. Since the government determines physician compensation in it’s entirety for Medicaid patients, they should also have a mandate to provide the obstetric provider with sufficient malpractice insurance (or complete tort protection under the law), since this is part of doing business for the obstetrician in America.